2019 QCCA 887, 2019 QCCA 887

Official English Translation of the Judgment of the Court R. c. Collin 2019 QCCA 887 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006565-178 (700-01-134972-150) MINUTES OF THE HEARING DATE: May 17, 2019 CORAM: THE HONOURABLE DOMINIQUE BÉLANGER, J.A. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. APPELLANT COUNSEL HER MAJESTY THE QUEEN Mtre élizabeth ARIANE LACASSE (Absent) (Director of Criminal and Penal Prosecutions) RESPONDENT COUNSEL ALEXANDRE COLLIN MTRE KARL-EMMANUEL HARRISON (Absent) On appeal from a judgment rendered on October 18, 2017 by the Honourable Gilles Garneau of the Court of Québec, District of Terrebonne.

NATURE OF THE APPEAL : Acquittal – Dangerous driving causing bodily harm. Clerk at the hearing: Mai Nguyen. Courtroom: Antonio-Lamer. HEARING 9:30 Hearing continued from May 14, 2019. Counsel were not required to be present today. BY THE COURT: Judgment – see page 3. End of the hearing. Mai Nguyen Clerk at the hearing BY THE COURT JUDGMENT [ 1 ] On October 18, 2017, after a trial presided by the Honourable Gilles Garneau of the Court of Québec, District of Terrebonne, the respondent was acquitted on two counts of operating his vehicle while impaired by alcohol.

The judge acquitted him on the count of dangerous driving causing bodily harm, but found him guilty of the included offence of dangerous driving. The appellant appeals the verdict of acquittal. [ 2 ] The appellant raises a single ground of appeal. It argues that the trial judge erred in law by analyzing causation based on an erroneous legal standard and that this error had a material bearing on the acquittal.

At the hearing, the Court allowed the respondent’s counsel to present his observations, despite the fact he had not filed a brief. [ 3 ] The Court is of the opinion that the appellant is correct and the appeal should be allowed. [ 4 ] According to the trial judge, the respondent was guilty of the offence of dangerous driving, but he provided an explanation for the cause of the accident, namely, that the [ translation ] “gas pedal had been stuck” when he entered the curve. [ 5 ] When setting out the issues to be resolved, the judge stated the following regarding the count of dangerous driving causing bodily harm: [ translation ] And thirdly: was there dangerous driving, and, if so, was it the cause of the bodily harm [the victim] suffered? (Verbatim transcript.

Emphasis added.)

[6] The judge explained the evidence he accepted regarding the dangerous driving: [translation] The Court notes that the accused was driving quickly, above the speed limit. He passed three (3) cars, in the curve he was driving abovethe speed limit. He was familiar with the location. He was not familiar with the vehicle he was driving, it was the first time he wasdriving it. Despite the warning from his friend Samuel to be careful at the curve, he maintained the same speed and braked a little later.He was in a rush to get home.

It is worth remembering that he had gone to bed at seven (7:00 p.m.) because he was tired. He hadreceived several calls from the complainant and he was in a rush to go to bed, it was half past midnight (12:30 a.m.). The Court, however, notes that he mentioned, after getting out of the damaged car, that the gas pedal had been stuck. This wascorroborated by the witness Sylvain Grenier. He also said it to the police officers, it was not him. Was there a mechanical problem or didsomething obstruct the pedal? Perhaps.

The Court cannot speculate, but is aware of all the recalls due to carpets on an unknown make ofcar(?). (Verbatim transcript. Emphasis added.) [7] The judge then explained that he was finding him guilty of dangerous driving and was acquitting him of dangerous drivingcausing bodily harm. He stressed the following: [translation] On the second count, the Court notes from all of the evidence that the accused drove the car belonging to his friend Samuel at anexcessive speed, over the limit. Throughout the long drive on Montée St-Nicolas, he drove at an excessive speed.

He braked from two(2) to four (4) metres from the curve. He was familiar with the location and the curve, he passed three (3) vehicles before this curve, hedisregarded the warning from his friend Samuel regarding the curve. Each case is fact-driven, but, here, speed is a material element inthe marked deviation in conduct. An ordinary individual placed in the same situation would not have acted in this manner. There was adefinite risk of causing bodily harm to people, and he was in a rush to get home.

He was not concerned with the safety of others,especially the complainant, who he knew was intoxicated and vulnerable because she was not strapped in in the back seat. CONSEQUENTLY, the Court finds that the accused was driving dangerously on June twenty-fourth (24th) two thousand and fourteen(2014).

But the Court has a reasonable doubt regarding the fact that this dangerous driving caused the bodily harm to the complainant.The Court considers it possible and plausible that the car did not respond to the application of the brakes due to an obstruction of theaccelerator, either due to a mechanical problem or something else. (Verbatim transcript. Emphasis added.) [8] Determination of causation is a question of fact: R. v.

Nette, 2001 SCC 78 , [2001] 3 S.C.R. 488, para. 72.Nonetheless, the judge is mistaken, on two occasions, regarding the legal principle that must guide a determination of causation, which isa question of law: R. v. J.M.H., 2011 SCC 45 , [2011] 3 S.C.R. 197, paras. 29-30. Moreover, in the present case, the legal effectof the proven facts accepted by the judge raises a question of law: R. v.

J.M.H., [2011] 3 S.C.R. 197, para. 28. [9] In Sarazin, Healy, J.A. pointed out that the standard for the test of causation requires that the respondent’s conduct have been asignificant contributing cause of the victim’s bodily harm, and nothing more, which is not a very high standard: R. c. Sarazin, 2018QCCA 1065, para. 21; R. v. Maybin, 2012 SCC 24 , [2012] 2 S.C.R. 30; R. v. Nette, 2001 SCC 78 , [2001] 3 S.C.R.488.

According to the Supreme Court, a cause that “significantly contributes” is equivalent to a cause that is “beyond de minimis”: R. v.Nette, [2001] 3 S.C.R. 488, para. 72. [10] The causation sought is not merely physical or mechanical, but rather, pertains to the offender’s moral culpability, which is not amechanical or mathematical exercise. The court must determine whether the accused should be held legally responsible for theconsequences of his conduct, in the present case bodily injuries, so that morally innocent persons are not punished: R. v. Nette, 2001SCC 78 , [2001] 3 S.C.R. 488, para. 83; R. v.

Maybin, 2012 SCC 24 , [2012] 2 S.C.R. 30, para. 16; R. v. K.L., 2009ONCA 141; R. c. Romano, 2017 ONCA 837. [11] The question, therefore, was not whether the respondent’s dangerous driving was the cause, as the judge wrote.

He should havedetermined whether that conduct had significantly contributed to the bodily harm. [12] More specifically, in the circumstances, criminal liability is not negated because the respondent had the impression that the[translation] “gas pedal got stuck”, an unexplained phenomenon that occurred, according to the respondent’s testimony, while he wasdriving at between 85 and 100 km/h when he entered the curve where the speed limit was 35 km/h (A.M. pp. 484-516).

An event thatoccurs and complicates driving that is already criminal clearly cannot, in the circumstances, negate the significant (or ”beyond deminimis”) contribution of such driving to the bodily harm caused to the victim. [13] Based on the known strict standard, the appellant is correct in stating that, in light of the facts accepted by the trial judge, it isreasonable to think that his errors had a material bearing on the acquittal: R. v. George, 2017 SCC 38 , [2017] 1 S.C.R. 1021,para. 27; R. v. Graveline, 2006 SCC 16 , [2006] 1 S.C.R. 609, para. 14; R. v.

Barros, 2011 SCC 51 , [2011] 3 S.C.R.368, paras. 79, 106. [14] That having been said, under s. 686(4)(b)(ii) Cr.C., the Court must now decide whether it is preferable to enter a guilty verdictor order a new trial. As this Court noted in Veillette, in order to enter a verdict of guilt, it is necessary that [translation] “the findings offact accepted by the trial judge, beyond a reasonable doubt, are themselves sufficient to find the respondent guilty.”: R. c.

Veillette, 2018QCCA 419, paras. 16-17. [15] In light of all the circumstances, the legal effect of the proven facts accepted by the trial judge is to inevitably establish legal

and moral causation between the dangerous driving and the bodily harm. [ 16 ] It is therefore appropriate to allow the appeal, substitute a guilty verdict on the second count as initially brought and refer the file back to the Court of Québec for sentencing. FOR THESE REASONS, THE COURT: [ 17 ] ALLOWS the appeal; [ 18 ] SETS ASIDE the guilty verdict on the offence included in the second count; [ 19 ] SETS ASIDE the acquittal on the second count as brought; [ 20 ] ENTERS a guilty verdict on the second count as brought; [ 21 ] REFERS the file to the Court of Québec for sentencing. DOMINIQUE BÉLANGER, J.A. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A.